FDA: Calorie-count mandate of ObamaCare “extremely thorny”

posted at 11:21 am on March 13, 2013 by Ed Morrissey

Who could have seen this coming? Well, besides anyone who actually paid attention when it first became known that the ObamaCare law contained a hidden mandate that forced food-selling chains of 20 or more locations to post calorie counts of every item for sale, a fact that only came out after the bill’s passage. Three years later — three years? — the FDA is still trying to figure out how to implement it … and failing:

Diners will have to wait a little longer to find calorie counts on most restaurant chain menus, in supermarkets and on vending machines.

Writing a new menu labeling law “has gotten extremely thorny,” says the head of the Food and Drug Administration, as the agency tries to figure out who should be covered by it.

The 2010 health care law charged the FDA with requiring chain restaurants and other establishments that serve food to put calorie counts on menus and in vending machines. The agency issued a proposed rule in 2011, but the final rules have since been delayed as some of those non-restaurant establishments have lobbied hard to be exempt.

While the restaurant industry has signed on to the idea and helped to write the new regulations, supermarkets, convenience stores and other retailers that sell prepared food say they want no part of it.

The “restaurant industry” didn’t sign on to the idea. The largest players in the restaurant industry supported it, because it gives them a large competitive advantage. Their menus are stable, and they can test once and apply the results to hundreds or thousands of locations nationwide, driving the cost per location downward in comparison to smaller chains that have to expend the same cost. Furthermore, the need to test will discourage innovation in offerings, as the cost to determine calorie counts will inhibit flexibility.

This is exactly why trade groups — which usually represent the biggest players in any market — support government interventions like this. It creates a situation where government interferes in a way that exaggerates the benefits of cost distribution and forces smaller players to raise prices faster, making them less competitive and more likely to fail or sell out.

And now, the FDA is finally realizing that it’s nearly impossible for retailers and restaurateurs to keep up with calorie counts, which is why the rule is “extremely thorny.” As recipes change and sources for ingredients evolve, the maintenance alone will be a nightmare for all but those who control the entire distribution chain for their products — in other words, the McDonalds, the Burger Kings, and so on. I guess that must be what the Obama administration has in mind for improving the health of Americans through this mandate. Let’s also not forget that putting calorie counts on menus doesn’t actually change behavior anyway.

As for who could have foreseen this, let’s go back three years to this video I did with Ken Schelper, VP of Davanni’s, a local pizzeria chain, to see how it impacted their planning after the mandate was first revealed:

By the way, if you’re ever in Minnesota, be sure to have one of their pizzas, or anything else on the menu. And be sure to read to the end of the AP article, because Davanni’s has some support from the largest pizza makers in the industry thanks to the near-impossibility of posting calorie counts for every possible combination on pizzas.

Furthermore, the need to test will discourage innovation in offerings, as the cost to determine calorie counts will inhibit flexibility.

I’m not sure this is entirely correct. If I recall correctly from my reading of that section of the bill, short-term menu items are exempted from the calorie reporting. I speculated then that innovation might actually increase as smaller shops introduce new dishes constantly to exploit a loophole of sorts.

This is exactly why trade groups — which usually represent the biggest players in any market — support government interventions like this. It creates a situation where government interferes in a way that exaggerates the benefits of cost distribution and forces smaller players to raise prices faster, making them less competitive and more likely to fail or sell out.

Once again, feudalism rears its ugly head. Trade guilds in medieval times were designed to protect existing members and discourage newcomers with innovative ideas. This is feudalism on steroids.

Well, I think the solution to this mandate is to eventually have government manage all production, distribution, sale and service of food and meals, in a singe-provider plan, and put all matters of calorie count directly into the hands of those who know what is best for our health.

Ed, since you are in Rome, perhaps you could tell us just how many restaurants and fast food joints post calorie counts on the menu? My guess is zero. This whole obsession with calorie counting is strictly a cause of nanny state liberals here in the US, much like the obsession in Quebec for all menus and signage to be in French, by their nanny state language police.

No problem, the Eloi (aka citizens) are very compliant and the Morlocks (aka leftist government) will ensure strict compliance.

rplat on March 13, 2013 at 11:32 AM

The Morlocks, as you call them, are Marxist totalitarian control freaks. The Eloi, on the other hand are those indoctrinated in public schools to believe that Marxist/Socialism is a functional political/economic system. Obamacare is a cudgel to force those of us who have not been fully indoctrinated into Marxism to comply with the demands of the Marxists. Their is A Path Forward, but it will not be an easy path as the Marxists have no intention of relinquishing the seats of power that they have lied and deceived their way into.

And be sure to read to the end of the AP article, because Davanni’s has some support from the largest pizza makers in the industry thanks to the near-impossibility of posting calorie counts for every possible combination on pizzas.

It doesn’t take a genius to see where this will lead for the pizza industry. There won’t be a la carte topping options anymore. They will simply remove the a la carte topping option, and the only pizzas available will be a specific variety of topping combinations… e.g. cheese, pepperoni, meat lovers, veggie lovers, supreme, etc.

just make any claim on the menu and place a disclaimer…”ingredients previously used in the development of this meal are no indicators of current or future caloric content”
Works for the SEC in just about every financial document they approve for publication.
DanMan on March 13, 2013 at 11:29 AM

LMAO!

This is exactly why trade groups — which usually represent the biggest players in any market — support government interventions like this. It creates a situation where government interferes in a way that exaggerates the benefits of cost distribution and forces smaller players to raise prices faster, making them less competitive and more likely to fail or sell out.

See GE and other big companies revel in the way government protects their interests.

It doesn’t take a genius to see where this will lead for the pizza industry. There won’t be a la carte topping options anymore. They will simply remove the a la carte topping option, and the only pizzas available will be a specific variety of topping combinations… e.g. cheese, pepperoni, meat lovers, veggie lovers, supreme, etc.

gravityman on March 13, 2013 at 11:46 AM

Leading to less choice in the marketplace of ideas.
How nice for some of these big businesses seeking to choke out the little guy that might have an awesome idea that horns in on the big guy.
These companies that are for all of these types of things are part of the insidious problem of this crony capitalism.

Well, I think the solution to this mandate is to eventually have government manage all production, distribution, sale and service of food and meals, in a singe-provider plan, and put all matters of calorie count directly into the hands of those who know what is best for our health.

hawkeye54 on March 13, 2013 at 11:36 AM

Soylent Green!

…and that ties in nicely to the “problem” of people living too long.
/SARC

I don’t even pay attention anymore unless I’m in diet mode. When Starbucks first started putting calories on their foods, I put a halt on that 400 calorie pastry…for about a week.

sydneyjane on March 13, 2013 at 11:52 AM

I am the same. When I am in diet mode, I might go on a website to see the nutrition info, but most people know what makes them gain weight. However, I much prefer educating people with information vs. unfairly banning products that people are misusing. My father always said, “always in moderation”.

Ooops. I suppose this means the legislature must pass a 500 page amendment to Obamacare, issue more Executive Orders, hire more calorie count enforcement agents and bureacrats, and increase taxes to pay for it all.

Maybe Congress will toss something into the new legislation that will grant greater power to Nanny state fascists like Bloomberg. Perhaps there should be a provision that enables comrades to anonymously inform about non-compliance.

The largest players in the restaurant industry supported it, because it gives them a large competitive advantage.

This is when I hate corporations. They would sell us all out to slavery if they could make a profit.

Like Lenin said.. when it comes time to hang the last capitalists, it’ll be a capitalist who sells him the rope.

How you combat these large corporations is by making it easy and cheap to start a business. One small business is not a threat to a Pepsi or McDonalds. But thousands of new ones starting every week who want to be the next Pepsi or McDnolds is. Suddenly, corporations will become very sensitive to the wishes and desires of the public, and not as much to politicians.

In NYC, some residents actually defend a Mayor who outlaws cup sizes in bodegas, even while 80% of school kids cannot read (according to a recent WCBS report) in a school district he is famous for seizing control of years ago.

Here, the government concerns itself with minutae even while it cannot ensure border security, diplomatic security or pay it’s bills.

You don’t need to know the calories. Simply know which foods have added sugar and oil in them, and avoid them 90% of the time. You will lose weight–guaranteed. The real problem with the American diet is that most people don’t get this, and the government doesn’t tell them, instead pushing low fat, high carb, processed crap on us.

What kills me is that the leftists say that the purpose is to reduce the healthcare costs to Americans. They say that diseases like diabetes are attributable to poor food choices.

How do you know that my fast food habit will result in any health condition that will cost the taxpayer anything? Are you part of the Minority Report? Can you see my future?

First, govt get out of providing healthcare insurance. Problem solved.
Second, get out of my private life. If I want to eat a whole pizza for dinner, that’s my prerogative.
Third, let INDIVIDUALS and their private insurers decide issues like which behaviors are “allowed” and which ones should be penalized.

I’ve had it with losing my liberties…or the threat to losing my liberties. I don’t want anxieties over my govt doing this to me. I’d rather focus my anxieties on stuff like why is North Korea still rattling its sabres.

This is when I hate corporations. They would sell us all out to slavery if they could make a profit.

Like Lenin said.. when it comes time to hang the last capitalists, it’ll be a capitalist who sells him the rope.

How you combat these large corporations is by making it easy and cheap to start a business. One small business is not a threat to a Pepsi or McDonalds. But thousands of new ones starting every week who want to be the next Pepsi or McDnolds is. Suddenly, corporations will become very sensitive to the wishes and desires of the public, and not as much to politicians.

JellyToast on March 13, 2013 at 12:02 PM

Spot on.

This is why I laugh when some dumbass lefty starts talking about how so much of the high tech industry is “liberal”.

The profit margins in those industries are huge and young skilled and well educated high tech workers work very long hours for relatively low pay, often much less than unionized auto workers (hoping it will pay off later — it doesn’t always). Yet the Dems will never, ever criticize that industry like they do others. The Dems take care of them and the higher ups in turn ostensibly support Dems, at least they say they do. Usually they contribute just as much to the GOP as to the Dems. For many reasons it is politically in their favor for those who run these corporations to pay lip service to Dems.

The socialists attack convenient populist targets to get votes and leave others alone, for now, out of political expediency. Modern neo-scoialism tries to implement socialism through large corporations that are for all intents and purposes essentially run, at the highest level, by the government. This system also makes it much easier to collect hidden taxes like a VAT. That is the Western European socialist model. It kills entrepreneurship and new business creation. Relative to the US, Europe has created very, very few big new companies in the past few decades.

There are simple ways around this for an outfit like Davanni’s. Split into two companies. Or, close a couple of locations. If menu revisions are going to be 30k per pop, that’s going to take the juice out of their two lowest performing locations pretty quickly, anyway.

The profit margins in those industries are huge and young skilled and well educated high tech workers work very long hours for relatively low pay, often much less than unionized auto workers (hoping it will pay off later — it doesn’t always)…

I’ll add that the high tech industry also outsources a lot of work to low wage countries, and almost all high tech industry manufacturing operations are in low wage countries.

heck, there’s no penalty for Harry Reid not allowing a required by law budget to be filed, make the penalty for not complying with this law similar in harshness

DanMan on March 13, 2013 at 12:28 PM

On a related note Congressman McCarthy summed the situation up pretty well. Over the last four years our lazy intellectual lightweight rat-eared wonder has spent more time filling out NCAA brackets than he has on the budget.

In my mind, I see a line of people (a la Pink Floyd’s “The Wall” video) trudging into an automated factory who are then processed into food that is conveyed to people in line at the other end of the factory who get to eat the end product.

The actual process by which Soylent Green will be produced, as seen on “How It’s Made” on the Discovery Channel……coming soon.

Just treat any add-on as a separate menu item. It makes it a bit wordy and would require a little more menu area. If the law requires that the math be done for them, then just remember the words of Mr Bumble,”The law is an ass, an idiot.”

But, according to Rush, items aren’t just labeled, they have to be sent off to labs to be tested for the correct calories. Each and every item.
So.. in other words, some grocery store has a fresh food area with baked goods, etc, every item has to be tested and labeled. And, the grocery store must show proof to justify their labels if questioned.

Will they have the time and money to ship off a sample of every single item displayed?

So who will be hardest hit? The fresh food areas and baked good sections of the stores! Our local grocery stores often get fresh foods from local growers. They also always have new and different things from the baked area. Give out free samples and also serve hot meals in their deli area. Will they still be able to afford to do this?

This is like cancer and smoking. Is there really anyone out there who doesn’t know that a supersized burger meal or a pound of pasta with meatballs isn’t diet food? My guess is most people who eat out are either treating themselves to an occasional diet splurge or don’t care how many calories are in the meal. Many restaurants have little indicators next to “heart healthy” or lower calorie meals. That should be enough. People I know who are watching their weight simply ask the wait staff about the ingredients/cooking methods of certain dishes.

Wait til the Libiots wake up and realize it is not a calorie count issue, but rather serving size. When Gubmint wakes up to that fact, the utensil industry will have a mandate to reshape their spatulas, pie servers and spoons. Maybe I should draft my patent now.

Just treat any add-on as a separate menu item. It makes it a bit wordy and would require a little more menu area. If the law requires that the math be done for them, then just remember the words of Mr Bumble,”The law is an ass, an idiot.”

OBQuiet on March 13, 2013 at 12:36 PM

I say if we’re going to do this, lets just go whole hog.

Forget the menu and portion size. Lets require, by law, all businesses that sell food, prepared or not, to provide mandatory food briefings prior to each service.

Headed to Giant? Classes are held every hour on the hour, and fill up fast, so call ahead.

How you combat these large corporations is by making it easy and cheap to start a business.

JellyToast on March 13, 2013 at 12:02 PM

How you combat this is by getting government out of the things it isn’t supposed to be involved in. If there isn’t any federal regulation of calories or serving sizes, then the big corporations have no incentive to tweak it or lobby about it.

And I think that we should hold every Congressman who voted “aye” to account.

ObamaCare law contained a hidden mandate that forced food-selling chains of 20 or more locations to post calorie counts of every item for sale, a fact that only came out after the bill’s passage. Three years later — three years? — the FDA is still trying to figure out how to implement it …

…do they have to list the cumlative numbers of brain cells in the FDA too?

This is how we got “Big Media” and “Big Business”. As trade unions came in, the only printers that could survive the demand for wages were the richer publishers, same thing is true in other industries.